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Sunday, December 8, 2013

Selby Reviews "Speaking Secrets (Sex and Sexuality as Public Property)"

Book Review of Speaking Secrets (Sex and Sexuality as Public Property), Sue Joseph, Alto Books,
www.altobooks.com.au, 2012, paperback,
ISBN 9781921526183, Aus. $24.95, also available at Amazon.com

I heard about this book when the author,
Sue Joseph, was interviewed on radio about it. Talking about people who live
with 'taboos' and how to interview them caught my attention because advocates
require that witnesses speak secrets in many court cases, and especially so in
sexual assault trials.

Few of those who report sexual assault go
so far as to be publicly questioned about it, even with today's 'compassionate'
practice of pre-recording their chief and cross-examination or, at least,
having the accuser and the accused in different rooms. That's hardly surprising - given that most of
us are none too keen on the idea of talking about the minutiae of our sex
lives.

Her interviewees talk to her, and to us,
about being raped as a child or an adult, being sexually active when physically
disabled, being born as the result of a rape, seeking and living with sexual
reassignment, being bi-sexual, about the consequences of 'coming out', about
life after having both breasts removed, but mostly about their survival -
sometimes strong, sometimes a tad too close to the edge. The stories dwell on 'the aftermath of
living' as distinct from the 'causing event'.
We have to imagine the causative trauma - just as we lawyers and the
jurors do in courtrooms.

Therein lies an unintended lesson from this
book for advocates. Sue Joseph discusses
the various views as to whether an intrusive interview such as hers should be
stopped if the subject shows distress.
Sue has options that are not available in the courtroom: beyond the
tissues, the sip of water, and a short break, 'the show must go on. The
questions must be asked. Answers must be given.’

So many sexual assault cases are about
accuracy of recollection and/or consent. The historic cases - the adult now
recalls abuse as a child - test accuracy and veracity of memory. Recent event cases, where identity is not an
issue, are all about, 'Was it consensual or not?' Unless an offender is confronted by more than
one victim then the contest comes down to,' Is the accuser to be believed
beyond a reasonable doubt about an event at which only the accused and the
accuser were present?'

Career prosecutors and criminal defence
specialists should read this book. They
should start with Lyn Austin's story because it is closest to home. Whichever end of the bar table is preferred
the reader should think about, ' Knowing
her story, how could I have examined or cross-examined this woman? '

A decision, readily defensible and
understandable, was made that there would be no prosecution. Ms Austin and her story were never tested,
but neither was her accused. Did that decision sufficiently respect Ms Austin?
Could Ms Austin have been properly prepared to tell her story and to rebut a
cross-examination that would focus negatively on her credibility? More broadly, but a question that will need
to asked often in the aftermath of the current inquiries into historical abuse,
do prosecutors have adequate, objective information about the accuser's
capacity when making the decision to go to trial or not to go to trial?

Do we need to acknowledge that we need a
process that shows accusers why there will be no conviction, but then
facilitates a 'civil' process that has the unconvictable offender acknowledging
the harm and, in some meaningful way, demonstrating contrition? Has the thirst
for criminalisation blinded us to the need to think first about the best
possible outcomes for accusers and accused?
Wouldn't plaintiff and defendant in so many cases be a much better use
of our court system?

Sue
Joseph in her acknowledgements to her subjects hopes she has not let anyone of
them down. That's a thought that many
advocates might pause to ponder as they enter
the court room to run what is just another criminal case for them but that is
the case for an accuser and an accused.

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The blog administrators are Christopher W. Behan (Southern Illinois University School of Law), Charles H. Rose III (Stetson University College of Law). Hugh Selby, an Australian barrister and advocacy trainer stepped aside in February, 2016.

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